Thursday, September 2, 2010

6th Circuit re-defines walking time as working time under the FLSA

In June, the DOL’s Wage & Hour Division issued an Administrator’s Interpretation finding that that the time spent by employees donning and doffing (that is, putting on and taking off) protective equipment required by law is compensable and must be paid. It also means that an employee’s work day begins with the donning of required protective equipment and ends with its doffing, and all of the time in-between is payable work-time. On Tuesday, the 6th Circuit, addressed the same issue in an opinion that is binding on all Ohio employers.

In Franklin v. Kellogg Company [pdf], the Court concluded that the time spent walking between the locker room and the time clock after donning and before doffing protective gear is compensable working time.

The Court started with restating some general principles. Federal wage and hour laws define the “workday” as “the period between the commencement and completion on the same workday of an employee’s principal activity or activities.” Generally, time spent walking to and from a time clock is not compensable. During a “continuous workday,” however, the FLSA covers “any walking time that occurs after the beginning of the employee’s first principal activity and before the end of the employee’s last principal activity … must be compensated.” Principal activities are those that are an integral and indispensable part of the activities which the employee is employed to perform.

Kellogg required all hourly employees to wear company-provided uniforms (pants, snap-front shirts bearing the Kellogg logo and employee’s name, and slip-resistant shoes, and safety equipment (hair and beard nets, safety glasses, ear plugs, and bump caps). Kellogg mandated that employees change into their uniform and safety equipment upon arriving at the plant, and to change back into their regular clothes before leaving the plant, so that the uniform and safety equipment could be washed and cleaned. Kellogg claimed that changing into and out of the uniform and safety equipment is not “integral and indispensable” (and is therefore not compensable) under the FLSA.

The 6th Circuit disagreed, applying a broad interpretation of what is necessary for an employee to perform his or her job. The court evaluated these three factors—(1) whether the activity is required by the employer; (2) whether the activity is necessary for the employee to perform his or her duties; and (3) whether the activity primarily benefits the employer—and concluded:

[D]onning and doffing the uniform and equipment is both integral and indispensable. First, the activity is required by Kellogg. Second, wearing the uniform and equipment primarily benefits Kellogg. Certainly, the employees receive protection from physical harm by wearing the equipment. However, the benefit is primarily for Kellogg, because the uniform and equipment ensures sanitary working conditions and untainted products. Because Franklin would be able to physically complete her job without donning the uniform and equipment, … it is difficult to say that donning the items are necessary for her to perform her duties. Nonetheless, … we conclude that donning and doffing the uniform and standard equipment at issue here is a principal activity. Accordingly, under the continuous workday rule, Franklin may be entitled to payment for her post-donning and pre-doffing walking time.

This opinion has significant implications for any Ohio, Michigan, Kentucky, or Tennessee employer that requires its employees to change into protective gear or mandatory uniforms. After Kellogg, it is clear that the 6th Circuit is going to apply a very broad definition of “integral and indispensable,” even where uniforms or safety gear are not necessary for an employee to perform the job. As long as the donning and doffing is mandatory and provides some benefit to the employer (here, a sanitary workplace), it is compensable working time.

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or